IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ex.FA.No. 32 of 2005()
1. SHAHUL HAMEED, S/O. MUHAMMED,
... Petitioner
Vs
1. KRISHNAN KUTTY,
... Respondent
2. KRISHNAN @ CHANDRAN,
For Petitioner :SRI.NAGARAJ NARAYANAN
For Respondent :SRI.K.RAMACHANDRAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :06/10/2009
O R D E R
M.N. KRISHNAN, J.
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Ex.F.A. NO. 32 OF 2005
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Dated this the 6th day of October, 2009.
J U D G M E N T
This appeal is preferred against the order of the
Subordinate Judge, Ottappalam in E.A.559/95 in E.P.74/95 in
O.S.16/95. The applicant before the court below is the
purchaser of the property and he has moved the claim
application to establish that he is the owner in possession of
the property and therefore the said property cannot be sold
in execution of the decree. As per the provisions under the
Code of Civil Procedure as amended especially under Or.21
Rule 58(2) the courts are competent to consider the question
regarding the same and the parties are precluded from filing
separate suits. Order 21 Rule 58 is just like a provision
under Order 21 Rule 101 where all disputes with respect to
title also can be considered by the Court which arises in the
case. Now the following facts are very relevant for the
proper determination of the case.
Ex.F.A. NO. 32 OF 2005
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2. The claimant gets right over the property by
virtue of an assignment deed executed by the judgment
debtor in O.S.16/95 dated 9.11.1994. The plaintiff/decree
holder institutes a suit before the Court for realisation of the
money with a prayer to attach the property and the Court
attaches the property on 13.1.1995. It has to be
remembered that on the date of the attachment of the
property it has already been sold in favour of the claimant as
per an assignment deed dated 9.11.1994. It is a settled
position of law that the attachment before judgment does
not confer any title, charge, lien or priority in the property in
favour of the person attaching the property. So the mode of
challenge in these types of transfers may be confined to one
as a fraudulent transfer as contemplated u/s 53 of the
Transfer property Act or challenging the same as a sham
transaction. So far as the present case is concerned the
attempt of the decree holder in the case is to establish that it
is a fraudulent transfer. It is a settled position of law that
fraud cannot be inferred from conjectures and surmises. It
Ex.F.A. NO. 32 OF 2005
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can be remembered that O.S.16/95 is instituted for
realisation of some amount due under an agreement
between the plaintiff and the defendant in the suit. It is
stated that there is an undertaking in that agreement that
the defendant will not transfer the property. But that by
itself cannot deprive the right of a person who had purchased
the property parting with valuable consideration and without
notice of the agreement. The agreement relied upon is not a
registered one so as to bring into the question of a public
notice. It is a private agreement between two parties and a
person who purchased the property will be made to believe
that there is no such liability on the property. The mode of
finding out the encumbrance on the property is by applying
for an encumbrance certificate and when the document is not
registered, one would not be able to find these types of
undertakings or other things from the encumbrance
certificate. Just because a property has been purchased or
just because anything has been given by somebody one
cannot affix the notice on the purchaser regarding the said
Ex.F.A. NO. 32 OF 2005
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terms and conditions. When it is so a fraud cannot be
inferred. It has to be remembered that the assignment deed
is dated 11.9.94 and the suit is instituted only in the year
12.1.1995. A perusal of the discussions made by the learned
Subordinate Judge would reveal that after the purchase of
the property the claimant had paid tax and obtained Exts.A2
and A3 receipts. So it is proved that the claimant has
purchased the property by virtue of the document and acting
upon the basis of the same he did the mutation and had
started paying revenue for the property. Except the mere
ipsi dexit of the decree holder there is nothing to show about
the fraudulent nature. Who is colluding with whom is still a
misery in this case for the reason that the defendant in the
suit had chosen to remain exparte thereby paving the way
for the plaintiff to get a decree. There is absolutely no
charge decree as well. So in the light of all these factors and
in the light of the specific provision under O.38 Rule 10 of
the Code of Civil Procedure which specifically states that it
will not bar the right of a party who is in possession of the
Ex.F.A. NO. 32 OF 2005
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property prior to the date of attachment, it is to be held that
the claim petition has to succeed and that the order passed
by the learned Subordinate Judge does not call for any
interference and therefore the appeal fails and the same is
dismissed under the circumstances without any order as to
costs.
M.N. KRISHNAN, JUDGE.
ul/-